Aryan academy of Management Education And Technology, Cuttack V. ACIT, Cuttack

ITSSA 51/CTK/2009

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9161 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 20-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 10-02-2009
• Court: TRIBUNAL
• Department Lawyers: A C MONDAL
• Assessee Lawyers: P C SETHIDIGANTADASARS
• Keywords: Opportunity of being heard
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.T (SS) A.NO . 51 AND 52/CTK/2009 / ASSESSMENT YEAR S 1005 - 06 AND 2006 - 07 ARYA ACADEMY OF MANAGEMENT EDUCATION AND TECHNOLOGY,LINK ROAD, CUTTACK PAN AACTA 1972 D - - - VERSUS - . ASST.CO MMISSIONER OF INCOME - TAX, CIRCLE 2(1), ARUNDOAYA NAGAR,CUTTACK. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI P.C.SETHI/DIGANTADAS,ARS FOR THE RESPONDENT : SHRI A.C.MONDAL, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THESE TWO APPEALS FOR THE AYS 2005 - 06 AND 2006 - 07 RAISE A COMMON ISSUE FILED BY THE ASSESSEE IN SO FAR AS THE LEARNED CIT(A) HAS CONFIRMED PROCEEDINGS UNDERTAKEN BY THE ASSES SING OFFICER UNDER THE PROVISIONS OF SECTION 153C/143(3)/144 OF THE INCOME - TAX ACT,1961. THE ADDITION ON MERITS WAS NOT DISPOSED OFF INCONSEQUENCE THERETO. THEREFORE, WE PROPOSE TO DEAL THE ISSUE TOGETHER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. GROUND HAS BEEN RAISED WITH RESPECT TO THE MERIT ADDITION NAMELY CASH DEPOSITS IN THE BANK FOUND BY THE ASSESSING OFFICER WHICH THE ASSESSEE CLAIMS WAS NEVER PART OF ANY DOCUMENT ON SEIZED MATERIAL ATTRACTING THE PROVISIONS OF SECTION 153C. 3. IN VIEW OF THE FAC T THAT THE ASSESSEE HAD NOT FILED ANY RETURN AND HAS BEEN DENYING ASSESSMENT OF ITS INCOME UNDER THE PROVISIONS OF EITHER SECTION 12A OR SECTION 10(23C), THE LEARNED CIT(A) FOR BOTH THE AYS, THEREFORE, CONFINED HERSELF ON THE ISSUE OF VALIDITY OF ISSUE NOT ICE U/S.153C AND ON THE BASIS OF MATERIAL SEIZED IN THE CASE OF AN ASSESSEE U/S.153A BEING THE MANAGING TRUSTEE OF THE ASSESSEE BEFORE US. THEREFORE, APART FROM RAISING A COMMON ISSUE WITH RESPECT TO INITIATION I.T(SS)A.NO .51 AND 52/CTK/2009 2 OF THE PROCEEDINGS U/S.153C, THE ASSESSEE HA S ALSO RAISED GROUND OF APPEAL ON MERIT ADDITION OF RS.2 LAKHS FOR THE ASSESSMENT YEAR 2005 - 06 AND RS.1,74,000 FOR THE ASSESSMENT YEAR 2006 - 07 BEING CASH DEPOSITS IN THE BANK. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON REC ORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A DETAILED PAPER BOOK AND WRITTEN SUBMISSIONS. ON OUR PERUSAL OF THE SAME, WE ARE INCLINED TO HOLD THAT IT WAS NOT A CASE FOR THE ASSESSING OFFICER THAT THE ASSESSEE WAS TO BE TAXED UNDER THE PROVISIONS O F SECTION 153C ALONE ON THE BASIS OF SEIZED MATERIALS OR DOCUMENTS FOUND AT THE TIME OF SEARCH ON AN ASSESSEE SUBJECTED TO SEARCH AND ASSESSED U/S.153A. WE HAVE BEEN INFORMED THAT THE ASSESSING OFFICER BEING COMMON, THEREFORE, ONLY INDICATES THAT THE ASSES SING OFFICER WAS WITHIN HIS JURISDICTION TO PROCEED ASSESSMENT U/S.153C/144. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IT WAS THE TRUST DEED, WHICH ALONE WAS CONSIDERED PROPER FOR INITIATION OF PROCEEDINGS U/S.153C OF THE ACT. HOWEVER, FOR BO TH THE ASSESSMENT YEARS, WE HAVE OBSERVED THAT THE ASSESSING OFFICER AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE CHOSE TO CONSIDER THE CASH DEPOSITED IN THE BANK AS THE ASSESSEE COULD NOT OFFER ANY EXPLANATION IMPUGNED ASSESSMENT YEARS. OBVIOUSLY THE ASSESSEE HAS BEEN CLAIMING, RIGHT FROM THE BEGINNING, THAT NEITHER IT IS OBLIGED TO FILE A RETURN BEING AN EDUCATIONAL INSTITUTION NOR IT IS REQUIRED TO FOLLOW THE PROVISIONS OF SECTION 10(23C) WHEN THE GROSS RECEIPTS ARE LESS THAN RS.1 CRORE AND REGIS TRATION U/S.12A TO BE QUALIFIED FOR EXEMPTION. HOWEVER, THE SAME HAS TO BE BROUGHT ON RECORD NOT UNILATERALLY. THEREFORE, IT TRICKLES DOWN TO THE FACT THAT THE ASSESSEE MADE CASH DEPOSITS IN THE BANK WHICH WERE TO BE RELATED TO THE DEPOSITS MADE BY THE MAN AGING TRUSTEE, NAMELY SHRI ASHIRBAD BERHERA, MANAGING TRUSTEE OF ARYA ACADEMY OF MANAGEMENT EDUCATION & TECHNOLOGY. THE LEARNED COUNSEL FOR THE ASSESSEE AGREED TO THE PROPOSITION THAT IF AN OPPORTUNITY IS GRANTED, THE ASSESSING OFFICER WILL BE APPRISED OF THE CASH DEPOSITS NOT ROUTED THROUGH THE TRUSTEE WHO WAS SEARCHED AND ASSESSED U/S.153A. 5. THE LEARNED DR ALSO DID NOT HAVE ANY OBJECTION TO THE MATTER BEING RESTORED TO THE FILE OF THE ASSESSING OFFICER TO VERIFY ALL THE FACTS AND PROCEED TO ASSESS IN A CCORDANCE WITH LAW. I.T(SS)A.NO .51 AND 52/CTK/2009 3 6. IN VIEW OF THE ABOVE, THE IMPUGNED ASSESSMENT FRAMED FOR BOTH THE AYS ARE CANCELLED AND THE ISSUES ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO RE - COMPUTE THE INCOME IN ACCORDANCE WITH THE FACTS BROUGHT ON RECORD AFTER AFFOR DING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 23.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : ARYA ACADEMY OF MANAGEMENT EDUCATION AND TECHNOLOGY,LINK ROAD, CUTTACK / THE RESPONDENT : ASST.COMMISSIONER OF INCOME - TAX, CIRCL E 2(1), ARUNDOAYA NAGAR,CUTTACK. THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY. I.T(SS)A.NO .51 AND 52/CTK/2009 4